Cameron and Repatriation Commission
[2007] AATA 2067
•19 December 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 2067
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/2264
VETERANS' APPEALS DIVISION )
Re IAN CAMERON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr RG Kenny, Member Date19 December 2007
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
.....................[Sgd].....................
RG Kenny
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – special rate of pension – veteran not able to undertake remunerative work for more than 8 hours per week – veteran not prevented by reason of incapacity from war-caused conditions alone or substantially from continuing to undertake remunerative work that he was undertaking – pension payable at 100% of the general rate – decision affirmed
Veterans’ Entitlements Act 1986 (Cth) ss 19, 21A, 23, 24, 119, 120
Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Hendy (2002) 76 ALD 47REASONS FOR DECISION
19 December 2007 Mr RG Kenny, Member Background
1. On 28 July 2006, a delegate of the Repatriation Commission (the respondent) determined that Ian Cameron was entitled to be paid, in accordance with s 21A of Veterans’ Entitlements Act 1986 (the Act), pension at 100% of the general rate. The decision took into account incapacity associated with conditions accepted by the respondent as being war-caused under the Act. These are post traumatic stress disorder, bilateral sensorineural hearing loss with tinnitus and solar keratoses. That decision was affirmed by the Veterans’ Review Board and Mr Cameron seeks further review by the Administrative Appeals Tribunal (the Tribunal).
Issues and Legislation
2. Matters in issue are to be determined to the Tribunal’s reasonable satisfaction and in accordance with substantial justice and the substantial merits of the case: see s 120(4) and s 119(1)(g) of the Act, respectively. In that process, neither party bears an onus of proof: see s 120(6) of the Act. The procedure to be followed is provided for in s 19 of the Act. Subsection 19(5C) requires the rate of pension to be assessed from time to time during the assessment period. The term assessment period is defined in s 19(9) of the Act as the period starting on the application day and ending when the claim or application is determined. It is not disputed that the application day in this case was 6 December 2005 and that the assessment period runs from that day until the matter is determined by the Tribunal.
3. The issue raised by Mr Cameron is whether he meets the criteria for payment of an earnings-related rate of pension under s 24 of the Act. It is not in dispute that Mr Cameron was under 65 years of age at the time of his claim or that he is in receipt of pension at a rate greater than 70% of the general rate. Accordingly, he meets the preliminary requirements of s 24(1)(aa), (aab) and (a)(i) of the Act for the special rate of pension.
4. What must be determined is whether Mr Cameron meets the incapacity component in s 24(1)(b) of the Act. This is that he is totally and permanently incapacitated, that is to say, his incapacity from his accepted disabilities is, of itself alone, of such a nature as to render him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week. If that requirement is met, it will also be in issue whether s 24(1)(c) of the Act is met. This comprises two limbs which require that he:
·is, by reason of incapacity from his accepted disabilities alone, prevented from continuing to undertake remunerative work that he was undertaking (first limb); and
·is, by reason thereof, suffering a loss of salary or wages, or of earnings on his own account, that he would not be suffering if he were free of that incapacity (second limb).
Evidence
Mr Cameron
5. Mr Cameron gave the following evidence. He served in the army from 1963 until 1983. Initially, he was an enlisted man but then he completed a 12 month officer training course at Portsea. He reached the rank of major. He was a staff officer with a range of clerical and administrative responsibilities which included controlling and monitoring various army units and supervising both military and civilian office staff. He gradually became disenchanted with army life and came to realise that he would not be promoted further and would need to retire at age 43. He wanted to be involved in operating a charter boat in the Sydney area. From 1979, he commenced a steel-hulled boat-building project. In this, he utilised skills and interests he had developed when undertaking a part-time technical college navigation course in the early years of his service and a pre-service welding course. He left the army on achieving 20 years of service, thereby qualifying for superannuation benefits. He was contracted until December 1987 with the army reserve where he carried out work similar to that which he was doing previously. By October that year, he had “had enough of the army” and resolved not to renew his contract.
6. During his time with the army reserve, Mr Cameron completed and launched his boat and commenced informal charter work in the Sydney area for groups known to him through his own, his wife’s and his sister’s contacts. However, he was not able to formally register the boat for charter work because it did not meet specifications in relation to its deck railings and engine fuel lines. He agreed that substantial work needed to bring the boat into survey specifications. This would have involved lifting the boat from the water, removing the rails and replacing them with new fittings and completely redesigning and replacing the plastic fuel lines with copper ones. At no stage was this work ever done. By the time he decided to leave the army reserve, he was experiencing some tensions with other army officers and also with some of the people who were involved in his informal charter activities. He and his wife decided to move to Queensland in the hope that the charter operation would be successful and he advised the army that he was “having a good time sailing” and was travelling to a “warmer area”. In his evidence, he said that the real reason was that he “could no longer handle Sydney”. In a letter, dated 7 October 1987, he advised the Department of Veterans’ Affairs (DVA) that he was proceeding on an extended cruise.
7. On arrival in North Queensland, Mr Cameron and his wife took up residence in Townsville in 1988. He discovered that his boat met local specifications for charter work. However, he was not able to obtain the relevant licence to operate it. To do this, he needed to obtain a master 5 class ticket which required him to work for 2 years on a similar vessel. At no stage did he obtain that qualification. He did some “black market” charter work for groups such as backpackers in the areas around Airlie Beach and Shute Harbour but found that the competitive nature of local operators made it impossible to continue with this. He and his wife lived on the boat and he had continuing differences of opinion with other boat occupants. By letter, dated 22 May 1990, he advised the DVA that his cruise was “still continuing” and that it would do so “for some years”.
8. Mr Cameron came to understand from other people in the boating fraternity that, if he had enough sailing experience, he would be able to obtain the requisite licence to operate his boat in the Darwin and Kimberley areas. To gain the experience, he entered and competed in the Darwin to Ambon race. This commenced in mid 1992. He returned to Townsville in 1998. In the interim, he completed the race and then continued on a voyage around the world. During that time, he encountered various problems including the need for periodic repairs to be made to the boat, his wife’s serious health problems and lost and stolen documentation. Each of these resulted in delays in the progress of the voyage.
9. On returning to Townsville, he set about carrying out much-needed maintenance on his boat. This involved stripping and repainting, fitting new rigging and various forms of cosmetic work. This occupied him until early 2000. He obtained two short periods of work in 1999 as a gardener in a high rise complex. The first of these ended when the allocated task was completed and, on the second occasion, he left because he felt “exposed” in that he felt he was being looked at by residents. He next worked in 2003 for a short time for a security firm in a dinghy in Townsville Harbour, accompanied by a security guard, monitoring US warships which were berthed there for a period. He was forced to surrender this job because he did not have the required boat licence.
10. Mr Cameron sold his boat in 2003 and he and his wife toured Australia with a caravan for 2 years. In Wagga, he met with members with whom he had served in Vietnam and gleaned from them that he had changed and would benefit from some form of counselling. He pondered this until arriving in Perth where he again spoke to former army colleagues and he then approached the DVA. He sought assistance when he arrived back in Townsville a few months later.
Dr John Rogers, psychiatrist
11. Dr Rogers has treated Mr Cameron since November 2005. In a report dated 21 February 2006, he referred to the years of living on the boat as providing Mr Cameron with the opportunity to keep moving and to avoid having to interact with people whom he and his wife found irksome. He also referred to Mr Cameron’s gardening work and related that this finished because of the closeness of people and Mr Cameron’s irritability. In a later report, dated 7 December 2006, he wrote that this work came to an end because of “agitation, irritability and a sense of being tied down”. Dr Rogers expressed the opinion that Mr Cameron was not able to work more than 8 hours per week because of his post traumatic stress disorder.
Other evidence
12. In evidence were letters relating to Mr Cameron’s resignation from the army. On 4 February 1983, he advised that he wished to leave the army because he “intend[ed] to form a charter business” so as to establish “a business venture designed to provide a future career”. Also in evidence was a copy of Mr Cameron’s service pension application form which he lodged with the DVA on 29 March 2005. This was based on his age at the time and not invalidity.
Consideration
Incapacity: s 24(1)(b) of the Act
13. Paragraph 24(1)(b) of the Act requires that the incapacity from Mr Cameron’s war-caused diseases be such that it, of itself alone, renders him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week. It was conceded by Mr Stoner that this requirement is met by Mr Cameron. On the basis of the evidence of Dr Rogers, I am reasonably satisfied that this concession was properly made.
Continuing to undertake remunerative work: s 24(1)(c) of the Act
14. For the purposes of applying s 24(1)(c) of the Act, the Federal Court in Flentjar v Repatriation Commission (1997) 48 ALD 1 said that a proper consideration of the provision requires consideration of the following questions:
1.What was the relevant ‘remunerative work that the veteran was undertaking’ within the meaning of s 24(1)(c) of the Act?
2.Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
3.If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?
4.If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?
15. It was submitted by Mr Stoner that the relevant remunerative work that Mr Cameron was undertaking was the kind that he was undertaking with the army. This was agreed by Mr Honchin who conceded that none of the activities undertaken by Mr Cameron subsequent to his army service constituted remunerative work for the purposes of s 24(1)(c) of the Act. I accept those submissions and I am reasonably satisfied that the relevant remunerative work is senior management work. I am also reasonably satisfied that, during the assessment period, incapacity from Mr Cameron’s war-caused conditions is sufficient to prevent him from continuing to undertake that work. Again, this was conceded by Mr Stoner.
16. In relation to the third of the Flentjarquestions, Mr Stoner submitted that Mr Cameron’s incapacity was not the only factor preventing him from continuing to undertake that work as at the start of the assessment period. He referred to Mr Cameron’s age and the length of time out of the work force after 1987 as having relevance: see Repatriation Commission v Hendy (2002) 76 ALD 47 at [37]. I accept Mr Stoner’s contention. As at 6 December 2005, Mr Cameron was 60 years of age. He nominated his age, rather than invalidity, as the reason for seeking the service pension in March 2005. This was several months before the start of the assessment period. Also, in the assessment period and, indeed, at any time from 1987 until 2005, Mr Cameron made no attempt to obtain any work of the kind that he was undertaking with the army. Mr Honchin submitted that this was attributable to his post traumatic stress disorder and that, therefore, it could not be relied upon to take him outside of s 24(1)(c) of the Act. I do not accept Mr Honchin’s submission in that regard.
17. The overwhelming factor in Mr Cameron’s life during the period leading to the start of the assessment period was the interest in his boat and the boating lifestyle that he and his wife adopted and followed. This was unrelated to his post traumatic stress disorder and reflected the goals he set for himself when he began to build his boat while still serving in the army. From 1992 until 1998, the lack of any charter work was due to his engagement on a world voyage, the duration of which was extended due to a range of personal and boat-related difficulties. Until early 2000, his time was taken up in maintenance of his boat. For the next two years he was engaged in caravan travel around Australia. I am reasonably satisfied that each of these matters had their role to play in preventing Mr Cameron from continuing to undertake remunerative work that he had been undertaking.
18. In Mr Cameron’s situation, the first limb of s 24(1)(c) of the Act may be ameliorated by the operation of s 23(2)(b) of the Act which applies if, during the assessment period, he has been genuinely seeking to engage in remunerative work but has been unsuccessful substantially because of his accepted disabilities. However, he has not sought work during that time. Prior to this, attempts were made to work. He ceased a short term gardening project and said that this was because of the scrutiny to which he believed he was subjected. However, he gave a mix of other reasons to Dr Rogers for this including agitation, irritability and a sense of being tied down. He ceased a security job because of licensing problems. I am reasonably satisfied that the cessation of these jobs was not related to his post traumatic stress disorder substantially or at all. Mr Cameron completed an Employment Report on 22 February 2006 in which he referred to making general inquiries about work in boat-yards but was advised that he was too old. He also spoke to service station proprietors and was told that only cashiers were used in the modern format. Mr Honchin conceded, and I accept, that charter work was not remunerative work in Mr Cameron’s situation. Even if it were, any charter business prospects did not succeed in the Sydney area due to the specification shortfall of his boat and this was also a significant element in the reason for the decision to travel to Queensland. His lack of success in Queensland was due to his qualification shortfall. Those barriers prevented him from undertaking charter work and not his post traumatic stress disorder substantially or at all.
19. I am reasonably satisfied that the third of the Flentjarquestions is answered in the negative.
20. In relation to the fourth of the Flentjarquestions, which relates to the second limb of s 24(1)(c) of the Act, Mr Honchin referred to Mr Cameron’s determination and motivation as demonstrated by his completion of the Portsea course and subsequent promotion to the rank of major as well as his sense of commitment in completing his boat-building project. He submitted that, in the absence of post traumatic stress disorder, these qualities would have ensured that he continued in remunerative work after 1987 and that, therefore, he should be held to be suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of his post traumatic stress disorder.
21. The second limb of s 24(1)(c) of the Act is qualified by the terms of s 24(2)(a)(i) thereof. Mr Cameron will not be taken to be suffering a loss of salary or wages, or of earnings on his own account by reason of his service-related incapacity if he ceased to engage in remunerative work for reasons other than that incapacity. Mr Cameron’s evidence was that he had had enough of the army by October 1987 and he had the intention of forming a charter business. He so advised the army in his letter in 1987. His decision to cease remunerative work was contributed to by factors other than his post traumatic stress disorder.
Earnings-related rates of pension
22. I am satisfied that Mr Cameron does not meet the requirements for the payment of the special rate of pension under s 24 of the Act because, specifically, the terms of s 24(1)(c) thereof. This means that pension is not payable to him under s 24 of the Act.
Decision
23. The Tribunal affirms the decision under review.
I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member
Signed:……………………………………………..
Legal Research OfficerDate of Hearing 13 November 2007
Date of Decision 19 December 2007
Counsel for the Applicant Mr D Honchin of Counsel
Solicitor for the Applicant Purcell Taylor Lawyers
For the Respondent Mr J Stoner, Departmental Advocate
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